Decision Date: 10/17/95 Archive Date:
10/17/95
DOCKET NO. 93-20 716 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder, currently evaluated as 50 percent
disabling.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESSES AT HEARING ON APPEAL
Appellant and two friends
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Associate Counsel
INTRODUCTION
The veteran had active service from August 1965 to July
1967.
In a rating decision dated in June 1990, the Regional Office
(RO) denied the veteran's claim for an evaluation in excess
of 10 percent for post-traumatic stress disorder. The
veteran filed a notice of disagreement in October 1990. In
a rating decision dated in December 1990, the RO granted a
30 percent evaluation for post-traumatic stress disorder,
effective March 9, 1990. The veteran filed subsequent
notices of disagreement with subsequent rating decisions.
However, because the RO did not award the maximum available
benefit, the rating decision dated in December 1990 in which
the RO granted a 30 percent evaluation for post-traumatic
stress disorder did not abrogate the pending appeal. See AB
v. Brown, 6 Vet.App. 35, 38 (1993).
Also, the statement of the case was issued in May 1992, and
a timely substantive appeal was received in July 1992. A
rating decision in May 1992 granted a 50 percent evaluation
for post-traumatic stress disorder, effective March 1, 1990.
Thereafter, a hearing was held at the RO in August 1993
before a member of the Board of Veterans' Appeals (Board)
who will decide this case. The Board also notes that the RO
has granted temporary total ratings for various periods of
hospitalization under the provisions of 38 C.F.R. § 4.29
(1994).
Additionally, in May 1993, the RO denied service connection
for a back disorder and service connection for hypertension,
including service connection secondary to post-traumatic
stress disorder. The RO also deferred consideration of
claims for entitlement to service connection for a right hip
disorder due to exposure to defoliants and a total
disability rating based on individual unemployability. The
RO sent a letter notifying the veteran of the denials of
service connection and the right to appeal in May 1993 in
accordance with the provisions of 38 C.F.R. § 3.103(f)
(1994). However, a timely appeal was not received. See 38
U.S.C.A. § 7105 (West 1991). Also, in a July 1993 rating
decision, the RO denied a total rating. Notice of that
decision and the veteran's appellate rights were sent to him
in August 1993; but a timely appeal was not received. See
38 U.S.C.A. § 7105; 38 C.F.R. § 3.103(f).
The Board notes that the RO never adjudicated the claim for
entitlement to service connection for a right hip disorder.
With regard to that claim, claims for entitlement to service
connection for disabilities due to Agent Orange exposure in
Vietnam were held in abeyance pending the promulgation of
new regulations by the Secretary of the Department of
Veterans Affairs (VA). These regulations were codified at
38 C.F.R. §§ 3.307, 3.309 (1994). Thus, the RO may now
consider claims for service connection involving exposure to
Agent Orange.
Also, in a VA Form 21-4138 (Statement in Support of Claim)
received in May 1994, the veteran related that he was
submitting evidence in support of his claims, including
entitlement to service connection a back disorder, right hip
disorder and hypertension. Thus, the veteran has filed
another claim for entitlement to a total disability rating
based on individual unemployability and a petition to reopen
the claims regarding a back disorder and hypertension.
Additionally, he continues to claim that he is entitled to
service connection for a right hip disorder. Inasmuch as
these additional issues are not inextricably intertwined
with the issue currently on appeal and have not been
developed for appellate review, they are referred to the RO
for appropriate action.
REMAND
The Board notes that additional evidence has been received
since the last supplemental statement of the case was issued
in August 1993 and that neither the veteran nor his
representative has waived consideration of that evidence by
the agency of original jurisdiction, the RO. See 38 C.F.R.
§ 20.1304(c) (1994).
Also according to the report of a VA examination performed
in April 1992, the veteran was receiving benefits from the
Social Security Administration (SSA). The Board finds that
the VA's duty to assist in the development of the claim for
entitlement to an increased evaluation for a service-
connected psychiatric disorder includes obtaining copies of
the SSA decision and the supporting medical records. See
Murincsak v. Derwinski, 2 Vet.App. 363, 370 (1992)
While the Board regrets the delay involved in remanding this
case, it is felt that proceeding with a decision on the
merits at this time would not withstand scrutiny by the
United States Court of Veterans Appeals. Therefore, to
ensure that the VA has met its duty to assist the veteran in
developing the facts pertinent to his claim and to ensure
full compliance with due process requirements, the case is
REMANDED
1. The veteran should be afforded an opportunity to submit
any additional evidence he wishes in support of his claim.
2. The RO should obtain from the SSA copies of the records
pertinent to the veteran's claim for Social Security
disability benefits, including the SSA's decision and the
medical records relied upon in making that decision.
3. The RO should also attempt to secure copies of all VA
medical records pertaining to the veteran dated from June
1993, the date of the last such request.
4. After the above action is completed, the RO should
schedule the veteran for another VA psychiatric examination
which should include all indicated tests, including
appropriate psychological tests. Additionally, the examiner
should be afforded the opportunity to review the veteran's
claims file prior to examination. The purpose of the
examination is to ascertain the severity of the veteran's
service-connected psychiatric disorder. The examiner should
comment on what if any social and industrial impairment is
produced by that disability.
5. After the development requested above has been completed
to the extent possible, the RO should again review the
record in light of all additional evidence. If any benefit
sought, for which an appeal has been perfected, remains
denied, the veteran and his representative should be
furnished a supplemental statement of the case, which
includes a summary of all pertinent evidence received since
the last supplemental statement of the case issued in August
1993, and given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action until
otherwise notified.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1994).
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